State v. Marlowe , 277 Ga. 383 ( 2003 )

Carley, Justice,

concurring in part and dissenting in part. According to the majority,

the legislature has not authorized multiple convictions for possession of a weapon when multiple felonies are committed against one victim. Multiple convictions may be authorized in other circumstances such as when there are multiple victims.

Majority opinion, p. 383. I agree that OCGA § 16-11-106 authorizes convictions for as many counts of possessing a weapon as the evidence shows there are victims of predicate felonies committed by the accused. In my opinion, however, the majority’s holding that only one conviction is authorized when the armed defendant commits numerous felonies against a single victim is based upon an erroneous construction of the clear language of the statute. Therefore, I dissent to the partial affirmance and partial reversal of the judgments in these two cases. In my opinion, the judgment in Case Number S03G0351 is erroneous and should be reversed in its entirety, whereas the judgment in Case Number S03G0564 is correct and should be completely affirmed.

An unambiguous criminal statute cannot be altered by judicial construction. Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998). OCGA § 16-11-106 (b) provides, in relevant part, that

[a]ny person who shall have on or within arm’s reach of his or her person a firearm or a knife having a blade of three or more inches in length during the commission of, or the attempt to commit: [certain specified offenses], and which crime is a felony, commits a felony. . . .

Contrary to the holding of the majority, this Court has not previously held that this portion of the statute is ambiguous. Compare Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999) (addressing the sentencing portion of the code section). By its terms, OCGA § 16-11-106 (b) unequivocally makes possession of a gun or knife during the perpetration of any one of the predicate felonies a separate and independent crime. Neither the possession of the weapon nor the commission of the underlying offense, standing alone, authorizes a conviction for violating the statute. However, possession of a gun or knife while committing each of the specified crimes is itself a felony for which the defendant can be sentenced separately.

Therefore, the majority opinion is based upon the obviously erroneous proposition that “the relevant unit of prosecution is the possession of a firearm during the commission of the specified categories of felonies.” (Emphasis in original.) Majority opinion, p. 386. A prosecution for violating OCGA § 16-11-106 (b) is based upon both the possession of a weapon and the contemporaneous commission of one of the predicate offenses. The possession and the underlying crime are each essential elements which must be proven. Even if the defendant’s possession is continuous, his or her perpetration of a series of predicate offenses nevertheless demonstrates multiple violations of the statute. OCGA § 16-11-106 (b) authorizes as many convictions for the continuing act of possession as are accompanied by underlying felonies committed over the course of a crime spree.

This interpretation of the statute is reenforced by subsection (e) of OCGA § 16-11-106, which provides that any crime committed in violation of subsection (b) “shall be considered a separate offense.” Compare 18 USC § 924 (c) (1) (A). The majority does not cite any support for construing this provision as evincing “only the legislative intent to provide punishment for both the possession offense and the predicate felony. [Cits.]” Majority opinion, p. 385. As worded, subsection (e) does not provide for any exception. In fact, it was enacted because this Court gave the statute a more limited construction than the General Assembly intended. See Miller v. State, 250 Ga. 436, 437 (298 SE2d 509) (1983). Today’s opinion ignores the unqualified language of subsection (e), thereby failing to give effect to the “ ‘ “express legislative intent to impose double punishment for conduct which violates both [OCGA § 16-11-106] and other felony statutes.” [Cit.]”’ Miller v. State, supra at 437. Subsection (e) constitutes clear legislative intent that subsection (b) apply broadly so as to impose separate punishment for each and every instance that an accused possesses a weapon while committing a predicate felony, without consideration for such additional criminal liability as might attach as the result of the perpetration of other offenses.

A criminal statute must be read according to the natural and obvious import of its language, and its operation should not be limited or extended by application of subtle and forced interpretations. Foster v. State, 273 Ga. 555-556 (1) (544 SE2d 153) (2001). Today, a majority of this Court violates this principle by giving a strained construction to the unambiguous terms of OCGA § 16-11-106 (b), so as to narrowly redefine the proscribed act as possession of a weapon during the commission of a crime spree. Under that statute, as enacted by the General Assembly, the relevant and determinative question is simply whether the evidence is sufficient to authorize a finding that the defendants in these two cases committed each of the underlying crimes while in possession of a weapon. If he did, then, in accordance with subsection (e), there is no bar to the imposition of a separate conviction and sentence. Because the evidence as to the violations of OCGA § 16-11-106 (b) and (c) meets the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the convictions and sentences for all of those separate offenses should be affirmed in both cases.

I am authorized to state that Justice Thompson joins in this opinion.